Upstate New York Fracking Bans Challenged in Court

Two lawsuits have been filed in Upstate New York challenging gas drilling bans that aim to prevent hydraulic fracturing in the communities of Middlefield and Dryden. The lawsuits are coming as more Upstate communities, concerned about the environmental impacts of fracking, ponder instituting their own gas drilling moratoriums and bans.

As we’ve reported previously, New York state is poised to lift a years-long ban on high-volume, horizontal hydraulic fracturing. A recent moratorium expired on July 1, and Governor Andrew Cuomo is expected to allow fracking to commence at some point in the near future. The same day the ban expired, the New York Department of Environmental Conservation (DEC) issued a report recommending that fracking be allowed on most private lands in the state. If the DECâ€™s recommendations are adopted, as appears likely, 85 percent of the Marcellus Shale in New York would be accessible to natural gas extraction via fracking.

According to the Utica Observer-Dispatch, Middlefield in Otsego County was named in a lawsuit last Thursday by farmer and president of the Cooperstown Holstein Corp., Jennifer Huntington. Huntington has entered into leases with natural gas companies to allow drilling on her property. But in June, Middlefield enacted a zoning law that does not allow for drilling. The second lawsuit was filed last week against the town of Dryden in Tompkins County by Anschutz Exploration Corp. and is challenging an updated zoning law adopted in August that does not allow fracking, the Observer-Dispatch said.

Lawyers for the plaintiffs told the Observer-Dispatch that in both cases, the leases at issue don’t specify if high-volume fracking or other conventional methods of natural gas extraction would be used. The lawsuits assert that only the state of New York has the power to regulate natural gas drilling. Either case has the potential to set a precedent for all of New York.

According to the Observer-Dispatch, at least 13 municipalities have passed similar drilling bans, and more are considering such ordinances. New Hartford in Oneida County, which already has a six-month moratorium in place, is working on zoning legislation that likely would not allow for fracking. The town of Vernon passed a one-year moratorium on fracking last week. Marshall, Kirkland and Augusta also approved one-year moratorium, the Observer-Dispatch said.

A spokesperson from the state DEC told the Observer-Dispatch that the state supersedes municipalities for the regulation of natural gas drilling, so local bans and moratoriums on fracking wouldn’t prohibit the DEC from issuing drilling permits. But during permit reviews, companies must show their drilling would comply with local zoning laws, and the DEC would take local legislation into consideration when making permit decisions. The DEC spokesperson told the Observer-Dispatch that the issue of local fracking bans would likely need to be settled by the courts.